CampLine: 2009 Fall Issue

2009 Fall CampLine

By Charles R Gregg and Catherine Hansen Stamp

Do you use volunteers to conduct activities for participants or perform other services for your camp? The American Camp Association (ACA) has noted an increase in inquiries from its membership regarding the use of volunteers for staff positions. Volunteers can perform a variety of beneficial services for camps, but their use in camp operations raises critical legal issues that should be thoroughly understood by the camp, before it considers this staffing option.

Camps, particularly nonprofit camps, are now more inclined than before to consider volunteers for previously salaried positions. And persons in the workforce — minors and adults — are more likely to accept such positions in exchange for food, a bunk, and perhaps travel expenses. The use of volunteers may go beyond traditional day-to-day camp operations such as camp counselor and include light construction and repair, clearing, and related maintenance matters.

Volunteers may serve a variety of needs, and your camp may — probably does — in fact, currently have volunteers on your staff (or serving on your board). Your counselors in training (CIT), and other "interns," for example, may qualify as volunteers. Volunteers may be drawn from the camp family to chaperone trips off campus. Volunteers may provide regular or special services at the waterfront, the stables, the dining hall, or health center. Volunteers may be clearing brush from your land or water courses or repairing equipment and structures. They may be used to assist in serving third party camp users. The use of volunteers is not a new concept, but it appears their use is increasing.

While this development may reflect current — and hopefully temporary — economic stresses on camp budgets, the use of volunteers has significant legal implications for the camp and should be understood by management, in good times and bad. This article will address those legal implications.

Volunteers — Clearing the Air

Some in the outdoor industry believe that a volunteer has a reduced duty of care to a client or camper, leading them to conclude that they may relax their hiring, training, and supervision policies for volunteers as compared with policies applicable to paid staff. In other words, the belief is that the organization is somehow less responsible, legally, for the misconduct of a volunteer than it is for the acts of paid staff. This is dangerous thinking. It is unfair to the volunteer and can produce some severe disappointments, and worse, for the camp. As we will discuss, the volunteer generally owes the same legal duty of care to campers (and others associated with the camp) as does paid staff — to protect those persons from unreasonable risks of harm. He or she must have training adequate to meet this duty. There is no excuse, legally or ethically, for a differential in training if the tasks to be performed are the same. These observations pertain equally to for-profit camps and to nonprofit; religious, fraternal organizations; and other "agency" camps.

Others in the industry believe that a camp or volunteer will have immunity from liability under federal and state laws that grant a variety of immunities to volunteers of certain qualifying organizations (nonprofit, tax exempt, for example). Generally, that immunity is a limited immunity, and further, does not, in most cases, extend to the organization. That is, the camp can be found liable for injuries resulting from the wrongful acts of the volunteer, just as it can for the acts of paid staff.

Others believe that the camp's general liability or workers' compensation policy will cover any liability exposure. First, camp management must understand the camp's exposure to claims that arise from the conduct of the volunteer and for injuries or other losses to the volunteer. These matters require consultation with experts and familiarity with applicable laws and your insurance coverage. Is a camp volunteer an "insured person" under your general liability insurance policy? (Probably.) Is the volunteer subject to your state workers' compensation laws? (It depends, but often not.) Let's examine some specific issues.

Volunteer — Legal Issues

Legal Status of Volunteer
The status of a volunteer is awkward from a legal standpoint. Depending upon the camp's arrangement with the volunteer, a volunteer can be somewhere between an independent contractor and an employee in terms of rights and responsibilities and liabilities for his or her conduct.

More commonly, a volunteer is not engaged by the camp as an independent contractor (as might an entity the camp hires to, for example, run a day rafting trip for the camp's campers). If the volunteer is engaged by the camp as an independent contractor, and thus has responsibility and control over the manner and method of their own work, the camp should have a clear written agreement that outlines the rights and responsibilities of the parties and consider issues of insurance and liability in their agreement. In addition, the camp should exercise due diligence in considering the independent contractor's competency for the work and screening of its volunteer employees, if appropriate. (A full discussion of independent contractors is beyond the scope of this article.)

A camp is more likely to be using volunteers much like its paid employees, in that the volunteer is generally acting at the direction of the camp, in the scope of his or her responsibilities as a volunteer. However, unlike a paid employee, a volunteer is unpaid. We will focus on legal issues and exposure for the camp, regarding this type of volunteer.

Volunteer — Standard of Care Under the law — and in the context of a claim of negligence — volunteers will most likely be held to the same standard of care as those teaching, leading, or conducting the same or a similar activity. Generally, a volunteer will be charged with exercising reasonable care (that is, the care that a reasonably prudent person would exercise in the same or similar circumstances — e.g., an individual teaching or leading the same or similar skills). If volunteers will be teaching or leading technical skills, their training and skill should be consistent with appropriate practices in the industry for those leading or teaching the same or similar skills (including consistent with the camp's trained staff members leading or teaching those skills).

Camp Liability for the Acts of its Volunteers
A camp can be either directly or vicariously liable for the acts of its volunteers — just as it is liable for the acts of its paid staff. Direct liability can result, for example, from proven claims that the camp was negligent (failed to exercise reasonable care) in hiring, training, or supervising the volunteer. Vicarious liability is a legal concept that extends, to the camp, liability for the acts of its employees or volunteers, acting within the scope of their duties. This concept is often referred to as "respondeat superior" — that the master must answer for the acts of its servants. For example, if a camper or other party were injured by the alleged negligence of a volunteer, a lawsuit might claim that the camp was negligent in hiring or training the volunteer (direct liability) and/or that the camp was liable for the volunteer's negligent instruction or supervision of the camper, which is claimed to have caused the injury (vicarious liability). If volunteers are used casually in the organization, a third manner in which the camp could be held liable for the acts of a volunteer is under an agency theory. That is, a camper (or parent) alleges that the camp held the volunteer out (to the public) as a representative or employee of the camp, and thus should be liable for the volunteer's conduct.

Potential Immunity — Volunteers or Camp
Volunteers for nonprofits (including board members) benefit from some limited immunity from liability, pursuant to the federal Volunteer Protection Act (42 USC 14501, et seq) and many companion state statutes. Although there are exceptions to this immunity (for example, a volunteer's willful or wanton misconduct), the protections are significant, and these laws were enacted to ease volunteers' fear of liability, and encourage volunteerism. Years ago, a nonprofit or charitable organization also benefited from some limited immunity from liability; however, most states have eliminated this charitable immunity. There are vestiges of it left in some states (e.g., caps on damages for claims brought against nonprofits, or other protections), so it is certainly worth checking the law in your jurisdiction. (In addition, state-run organizations generally fall within a state's governmental claims act laws, and, depending upon the state, those laws can provide some limited immunity from liability.) However, the bottom line is a private organization — nonprofit or otherwise — generally does not enjoy the limited immunity from liability that may be available to its volunteers. Check with your legal counsel to better understand the applicable law in your state.

Liability Insurance and Workers' Compensation Coverage
In analyzing your insurance (with your insurance representatives and legal counsel) consider these exposures: the camp's liability exposure 1) for losses caused by the acts of its volunteers (e.g., in causing injury to campers or third parties); 2) for losses suffered by the volunteer, should the camp be sued by one of its volunteers. In other words, the camp should have liability policy protection whether it is sued by a camper or third party (resulting from the alleged acts of the volunteer) or, by the volunteer themselves (likely for injury occurring to the volunteer while performing their volunteer duties). Note that workers' compensation insurance often doesn't extend to volunteers. Workers' compensation can provide a valuable benefit to employer camps, should their employees be injured within the scope of their employment. The employee is entitled to "no fault" insurance coverage and is generally not entitled to bring a civil lawsuit against the camp — that is, the camp is provided some limited immunity from civil liability. If your workers' compensation benefits do not extend to your volunteers, your camp is left with this legal exposure. (See the Proactive Steps section of this article, regarding the potential use of a release of liability with your volunteers.)

In addition, your volunteers should understand their protections, should they agree to volunteer for your camp. It is important that the camp know, and inform its volunteers, whether volunteers are considered "insured persons" under the camp's general liability or directors and officers liability policies. Even if your camp is a nonprofit organization, entitling your volunteers to some limited immunity from liability under federal and applicable state laws, those volunteers can nevertheless be named in a lawsuit and will need a defense.

Here are some thoughts on proactive steps to take if you are using volunteers in your camp operation:

Hiring and Screening
Appropriate screening and background checks should be performed for volunteers in the same manner as those are performed for your paid staff. For accredited camps, these policies should be consistent with your ACA Standards requirements.

As in other personnel matters, it is critical that you consider an appropriate written agreement or other document for use with your volunteers that clearly sets forth the nature of the relationship, expectations, and consequences of the failure to meet those expectations. As mentioned earlier, if workers' compensation coverage is not an option for your volunteers, consider the use of an appropriate document containing the volunteer's acknowledgment and assumption of risks and release of liability in favor of the camp. As with the development of all documentation or contracts, it is important that you consult with legal counsel familiar with these issues and the laws applicable to your operation.

Training and Use of Volunteers
Consider what, realistically, your volunteers are capable of doing, and identify that you and your volunteers have a shared (and clear) understanding of their duties. Again, if volunteers will be involved with teaching or leading certain skills, conduct training which is consistent with appropriate industry practices, and importantly, with camp policies and requirements for your paid camp staff teaching or leading the same skills.

Applicable ACA Standards or Other Requirements
For accredited camps, study the ACA Standards for guidance and direction (non-accredited camps, too, should pay close attention to these standards, as they may be measured by those standards in the event of a lawsuit). In addition, if applicable, check your particular state's camp licensing requirements regarding use of volunteers. The ACA Standards glossary of terms does not define "volunteers" or "staff." However, the term "seasonal staff" is defined to include volunteers, as is the term "short-term staff" (the definition includes "unpaid" staff) and "counselor support personnel." In addition, several of the standards' interpretations refer to volunteers. These include HR-4 (mandatory screening); OM-3 (risk management planning); and HR 9 (use of CITs not to be included in supervision ratio calculations). In addition, the Introduction to the HR Standards section of the ACA Accreditation Process Manual identifies that: "Personnel to be considered in scoring the Human Resources standards include volunteer and employed staff who are involved in the operation of both the site and program and who are directly supervised by the camp operator. The standards also apply to those staff for whom the camp operator has responsibility for selection, training, and dismissal." Consider the application of these standards carefully, as you examine use of volunteers in your operation.

Applicable Law
Work with your legal counsel to understand and comply with pertinent laws or state case law that impact your use of volunteers. As recommended above, if you are a nonprofit or state agency or entity, examine applicable state and federal law that may provide limited immunity for volunteers or potential protections for your operation, in the event of a lawsuit. These steps can provide you with constructive assistance as you examine these issues.

Conclusion

Consider your camp's current or proposed use of volunteers. Using volunteers can be an effective way to stretch camp resources and provide additional support to the camp operation. For the volunteer to be a net asset, however, the camp must understand and manage the liability issues associated with their use. Camps who use volunteers wisely will further their goal of running a quality operation. In addition, in understanding and addressing volunteer issues appropriately, camps can potentially minimize the risk of loss to their campers and to their operation and be better prepared in the event of a lawsuit. As always, work with your legal counsel to understand the law in your jurisdiction, as laws vary from state to state.

This article contains general information only and is not intended to provide specific legal advice. Camps and related organizations should consult with a licensed attorney regarding application of relevant state and federal law as well as considerations regarding their specific business or operation.

Charles R. (Reb) Gregg is a practicing attorney in Houston, Texas, specializing in outdoor recreation matters and general litigation. He can be reached at 713-982- 8415 or e-mail rgregg@gregglaw.net[1]; www.rebgregg.com[2].

Catherine Hansen-Stamp is a practicing attorney in Golden, Colorado. She consults with and advises recreation and adventure program providers on legal liability and risk management issues. Hansen-Stamp can be reached at 303-232-7049, or e-mail reclaw@hansenstampattorney.com[3]; www.hansenstampattorney.com[4].

Endnotes
1 Nonprofit (and sometimes for-profit) organizations commonly use volunteers on their board of directors. Discussion of the legal issues related to the use of these volunteer board members is beyond the scope of this article.

2 Work with your legal counsel to understand the legal status of a CIT or intern. In some cases, state law, including workers' compensation law, may provide room for treating an intern, for example, as an employee, thus entitling him or her to workers' compensation benefits, in the event they are injured.

3 Camps should work with their legal counsel to clearly understand the difference between a volunteer and employee, for purposes of tax laws, wage and hour laws, etc., if the camp is providing some type of reimbursement of expenses, lodging, or stipend.